October 2011 Archives

Fitness club employees spend their days looking at and trying to improve human bodies. Clothing made for fitness and to accentuate the body is worn. In this type of workplace, sexual harassment is bound to occur.

Earlier this month, Jonathan Prince, a personal trainer at 24 Hour Fitness in Sherman Oaks, California, filed a lawsuit against his female manager. The suit alleges that the manager hit on Mr. Prince by asking him out and sending him suggestive text messages. When Mr. Prince asked her to stop she gave him negative reviews in retaliation, which hurt his chances for receiving a promotion or bonus. Mr. Prince is seeking over $50,000 in damages. This case highlights the fact that the victim of sexual harassment is not always female.

In 2004, the same club, 24 Hour Fitness, was ordered to pay $2.4 million to Cynthia Malek, a former employee who was fired because she complained that male co-workers were sexually harassing her. The company attempted to demote her from a management position to a sales position. Ms. Malek refused to accept the demotion and was fired. According to the arbitrator's comments, several of the criticisms that led to the attempted demotion of Ms. Malek came from the men she claimed had sexually harassed her. Even after damages were awarded to her, Ms. Malek continued to fight to have the ruling made public. She felt that the 24 Hour Fitness company as a whole tolerated sexual harassment and she wanted others to be aware of her situation. A year later, the ruling was publicized.

Not all cases of sexual harassment in fitness clubs are filed by employees that work directly with patrons. In August, 2011, Allstar Fitness settled a sexual harassment and http://www.millerfalknerlaw.com/lawyer-attorney-1400888.html by agreeing to pay $150,000 to a janitorial worker who was allegedly sexually assaulted numerous times by her supervisor. The supervisor told her to keep quiet about it or she would lose her job. When she asked him to stop, he fired her the next day. The claim filed by the Equal Employment Opportunity Commission (EEOC) on her behalf claims that the club's upper management never investigated her allegations. The settlement also requires the company to establish a complaint procedure and policies regarding sexual harassment and to provide employee training. Michael Baldonado, District Director of EEOC stated, "No one should be forced to choose between personal dignity and the paycheck that feeds your family."

It was 20 years ago this month that Anita Hill testified against U.S. Supreme Court nominee Clarence Thomas regarding sexual harassment. Her accusations were part of testimony subpoenaed during a Senate investigation into Clarence Thomas. At the time of the alleged harassment, Clarence Thomas was her boss at the U.S. Department of Education and, ironically, the Equal Employment Opportunity Commission (EEOC). Ms. Hill's disappointment in Clarence Thomas eventually being confirmed by the Supreme Court was in part a result of feeling "...they didn't understand the relevance of my testimony to Thomas' respect for the law. He did these things while he was in charge of enforcing sexual harassment laws."

But the confirmation of Clarence Thomas did not stop Ms. Hill's testimony from positively affecting sexual harassment. In 1980, only one sexual harassment complaint was filed with the EEOC. After Ms. Hill's testimony in 1991, 6870 complaints were filed. That number almost doubled again in 1992, and the complaints continued to increase for years, only tapering off more recently. What was once a subject too embarrassing to discuss became common conversation in workplaces across the nation. Women who previously kept quiet for fear of losing their jobs or other retaliation began seeking justice.

Sexual harassment was included in Title VII of the Civil Rights Act of 1964, which protects employees from discrimination and retaliation in the workplace. Years later, the Civil Rights Act of 1991 was passed, strengthening sexual harassment and all other discrimination laws by allowing a complainant to seek emotional distress damages and have a jury trial.

"Harassment can include 'sexual harassment' or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer."

In October 2009, Dawn Simpson filed a lawsuit against the city of Louisville after allegedly being sexually harassed and retaliated against by her former employer at Louisville Metro Animal Services. According to the suit, the former director of Metro Animal Services began sexually harassing Ms. Simpson shortly after she began working there in 2007. After Ms. Simpson complained to the second person in command, the suit alleges she was retaliated against by not being allowed to hire employees, make decisions on animal euthanasia, or utilize shelter volunteer coordinators. Her suit with the city of Louisville was settled this year for $287,000. Both men involved in the suit have resigned from their positions.

Ms. Simpson's claim stemmed from her employer touching her stomach and making inappropriate comments about her physical appearance. Other examples of sexual harassment that create a hostile work environment include crude jokes or sexually explicit photos or pictures being visible in the workplace. Another type of sexual harassment is quid pro quo sexual harassment. In this type of harassment, an employee must provide sexual favors to maintain or improve his or her position, benefits, or salary. Employees often believe that if they perform the sexual favors they cannot file a claim, but this is not the case. If the employee felt they had to do it, a sexual harassment lawsuit can be filed.

In a new workplace lawsuit in Lexington, Kentucky, Cynthia Elliot has filed a claim against the Appalachian Research and Defense Fund of Kentucky (AppalReD) alleging she was discriminated against because of her race and gender. Ms. Elliott, who is black, also felt she was retaliated against for firing white employees when she was terminated in January. The AppalReD board states she was fired after an audit showed the agency had spent $1 million more than its budget over four years and because funds were allegedly missing.

They may be, according to the U.S. Supreme Court. In September, 2002, Miriam Regalado filed a complaint with the Equal Employment Opportunity Commission (EEOC) against North American Stainless that alleged sex discrimination by her superiors. At the time the complaint was filed, Ms. Regalado's fiancé, Eric Thompson, was also employed by North American Stainless. About three weeks after North American Stainless received notice of Ms. Regalado's complaint from the EEOC, Mr. Thompson was fired.

Subsequently Mr. Thompson filed his own complaint with the EEOC alleging the company was retaliating against him for Ms. Regalado's claim, which he asserted is illegal under Title VII of the Discrimination in Employment Act of 1967. Title VII states that an employer cannot retaliate against an employee who has filed a discrimination claim by terminating his employment. Mr. Thompson's complaint was dismissed by the U.S. District Court for the Eastern District of Kentucky on the grounds that he was not protected by Title VII since he did not file the initial discrimination claim. The decision was upheld by the U.S. Court of Appeals for the Sixth Circuit.

The case was sent to the U.S. Supreme Court, which overturned the lower courts' decision. The court used a "zone of interest" test to determine if Mr. Thompson had a right to file a claim under Title VII. Per the syllabus of the opinion of the Supreme Court:
"Applying that test here, Thompson falls within the zone of interests protected by Title VII. He was an employee of NAS, and Title VII's purpose is to protect employees from their employers' unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation. Hurting him was the unlawful act by which NAS punished Regalado. Thus, Thompson is a person aggrieved with standing to sue under Title VII."

Workplace discrimination comes in several different forms. Sexual discrimination occurs when employees or potential employees are treated differently because of their gender. Negative employment decisions based solely on someone's faith constitutes religious discrimination. In the last week, cases have been filed against companies in Kentucky alleging racial discrimination and age discrimination.

On September 26th, 2011 the Equal Employment Opportunity Commission (EEOC) filed suit against River View Coal LLC alleging racial discrimination in the hiring of new employees between 2008 and 2010. Although it is unknown exactly how many people were involved, 13 people have filed complaints with the EEOC. In 2008, River View began interviewing applicants for a new mine that subsequently opened in 2009 in Waverly, Kentucky. The applicants who filed complaints were qualified and said no specific reason was given for why they were not hired or not even interviewed for the positions.

According to a press release from the EEOC, "The agency is seeking back pay, compensatory and punitive damages against River View Coal, as well as other relief, including a permanent injunction to prevent the company from engaging in future hiring discrimination." While back pay is fairly self-explanatory, compensatory and punitive damages require a little more explanation. Compensatory damages, often called "actual damages," are damages that are less tangible than back pay. They may include pain and suffering, emotional or mental distress, or certain medical bills. Punitive damages are meant to punish the offenders to discourage them and others from repeating the offense. This type of damage can be awarded only if it can be proven that the company knew what it was doing was illegal but did it anyway. In employment cases filed under the federal anti-discrimination law, known as Title VII, both compensatory and punitive damages are capped based on the number of people employed by the company.